Sutton and Sutton & Anor

[2012] FamCA 44

FAMILY COURT OF AUSTRALIA

SUTTON & SUTTON AND ANOR [2012] FamCA 44

FAMILY LAW – COSTS - Thrown away as a result of inept pleading.

Family Law Act 1975 (Cth)

APPLICANT: Ms W Sutton

RESPONDENT: Mr Sutton

INTERVENOR: Ms S Sutton

FILE NUMBER: MLC 11722 of 2010

DATE DELIVERED: 18 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written submissions

SUBMSISIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT: William Murray Solicitors

SOLICITOR FOR THE RESPONDENT: Nathan Kuperholz

Orders

1. That the wife pay the costs of the first and second respondents by agreement and failing agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Sutton & Sutton and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11722 of 2010

Ms W Sutton

Applicant

And

Mr Sutton

Respondent

REASONS FOR COSTS JUDGMENT

1. On 28 June 2011, I delivered reasons for judgment and made provision for the parties to make submissions in relation to costs. 

2. The application before the Court at that stage was clearly ill-conceived and required redrawing.  Mr Brown SC for the applicant conceded as much.

3. The proceedings included a second respondent who should not have been joined.

4. There were many aspects of the application that were not sensible and had to be started again.

5. The first respondent sought security for costs and although a substantially higher sum was sought, I ultimately made an order for the securing of $20,000.  I made other orders which would indicate on their face, that the respondent was not wholly successful and therefore that the applicant was not wholly unsuccessful.  That however does not mean that the respondent was inconvenienced by the proceedings.  There is little doubt that the application had to be reconsidered and on any view, the costs of the respondent of that hearing were thrown away unnecessarily.

6. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear his and her own costs. However, that is subject to the proviso that if there are circumstances which so justify it, the Court may make such order as it considers just but that too is subject to the proviso that the Court must consider the matters set out in s 117(2A).

7. The first question is therefore whether there are circumstances here which would justify a departure from the principle that no orders for costs should be made in this no-cost jurisdiction. If so found, the second question is whether the discretion should be exercised such as to give a just result. In turn, if the discretion should be exercised, the third question is what is a just outcome having regard to the matters in s 117(2A).

8. Section 117(2A) provides:

   (2A)    In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)such other matters as the court considers relevant.

9. The submissions of the respondent traversed the matters set out in s 117(2A) and I shall refer to them below. Importantly, the respondent pointed to the fact that the applicant came to court to argue matters unnecessarily having regard to the stage at which the proceedings had reached and the state of the paperwork. In her submission relating to costs, the applicant addressed the question of success having regard to the nature of the various applications for orders. It did not address the substantive issue of the problems of the pleadings but made reference to the fact that the issues occupied little if any time, at the hearing. Whilst that may be a basis not to make an order for indemnity costs, it is not a basis to refuse a litigant’s costs. Costs are not a punishment but a compensation for the party having to be involved in the proceedings.

10. Accordingly I find that there is a justifiable circumstance to depart from the principle referred to in s 117. It is appropriate in this case to exercise the discretion.

11. Having regard to the matters in s 117(2A) of the Act, it is clear that the parties are not impecunious and that there are no legal aid considerations. It must be concluded that the paperwork was ineptly drawn and that costs were therefore unnecessarily incurred. The submission of the respondent was that there was an offer in writing suggesting that the applicant amend her claim which was refused.

12. On that basis, taking into account all of the matters in s 117(2A), it is clear that the respondent was unnecessarily required to incur costs and they should be paid by the applicant wife specifically for the application before the Court that gave rise to the reasons for judgment of 28 June 2011.

13. I propose to order accordingly.

I certify that the preceding Thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 January 2012.

Associate: 

Date:  18 January 2012